When s. 293 of the Criminal Code of Canada was referred to the British Columbia Supreme Court, I wrote that I believed the law was clearly unconstitutional in its current form:

If this case was about legal recognition of polygamy — with massive implications for family law and even immigration policy — it would be much more challenging.

At issue, however, is whether a polygamy should be a criminal offence. Federal and provincial governments, and many interest groups, argue that the Criminal Code provision is necessary to protect women and children coerced into abusive relationships.

Such activity is already illegal, however, and the way s. 293 is written criminalizes all polygamous relationships, even those involving consenting adults. I would be very surprised if the B.C. Supreme Court — and, ultimately, the Supreme Court of Canada — does not find that the section is overly broad and therefore unconstitutional.

The Supreme Court of B.C., of course, did uphold the constitutionality of s. 293. (This is why you shouldn’t take my stock market or fantasy football predictions, either.) But the debate isn’t over, and the anti-criminalization arguments summarized in my blog post will still be forcefully made by religious and pro-polyamory activists.

Craig Jones, who represented the British Columbia Department of Justice in the Polygamy Reference, could not disagree with these arguments more strongly. A longtime civil libertarian, Jones was confident the constitutionality of s. 293 would be upheld, but he initially did not personally take a strong position against the practice.

By the time the matter made it to court, however, he was convinced polygamy is an inherently harmful practice that should not be tolerated in a modern society. He explains his evolution, and the case against polygamy, in his fascinating book A Cruel Arithmetic: Inside the Case Against Polygamy.

In a polygamous society like Bountiful, B.C. — a mysterious, secretive colony populated by members of the Fundamentalist Church of Latter-Day Saints, the breakaway Mormon sect which practises “plural marriage” — this “cruel arithmetic” inevitably manifests itself in two ways. Every time a man takes an additional wife (polyandry, the taking of multiple husbands by a woman, is almost unknown) another man in the community is left with no one to marry. And as the adult females are married off, younger and younger wives are taken. The results: child trafficking, sexual exploitation of minors, and “lost boys,” who are marginalized and even expelled from their homes:According to Jones, it is not enough for the state to take action against only “bad” polygamy involving young children or coercion and abuse:

Again and again, the discussion circled back to the fact that academic writers seemed to consider only harm arising in polygamous marriages, not polygamous societies [emphasis added]. The focus was entirely on how to accommodate polygamous unions while minimizing or addressing possible harms to co-wives and children. The commentators concluded that banning polygamy was unconstitutional because the law could be written to apply only to “bad” polygamy, or the state could simply scrutinize polygamous marriages looking for abuse and crimes. But the “cruel arithmetic” effect on the targeting of girls, like the increased criminality of men in the polygynous society, would be felt everywhere, and this was so even if every polygynous marriage was harmless, egalitarian, and restricted to fully consenting adults.

One of Jones’s expert witnesses, Dr. Joe Henrich, forcefully made the case that a “nontrivial” increase in polygamy would result in higher rates of crime and anti-social behaviour from the growing number of unmarried males (this has been the experience in China, where the “one-child” policy has led to an imbalance in the number of males and females).

But surely if polygamy were decriminalized, very few Canadians would take up the practice, right? Jones isn’t willing to take that risk. He devotes a lengthy chapter to the findings of historians and evolutionary psychologists, who note monogamous societies are a relatively new development. And, of course, there are still many nations where polygamy is legal and/or widespread, and it’s not hard to believe immigrants from these societies would be attracted to Canada — multiple wives in tow.

A Cruel Arithmetic makes a very strong case against polygamy, but does it make a strong case for criminalizing the practice? I find Jones’ arguments compelling (as did the British Columbia Supreme Court, obviously) but I still believe consenting adults have an inalienable right to enter into whatever arrangements they want.

Indeed, adults can enter into polyamorous relationships, provided they don’t go through anything like a marriage ceremony. Once the relationship becomes a “marriage,” though, it becomes a crime. As the distinction between even monogamous marriage and common-law relationships becomes less clear, I believe this becomes increasingly hard to justify. Even Jones has a difficult time pulling it off, in my opinion:

There may be harms that attached to some “polyamorous” relationships that weren’t marriages. But in my view, there was something about marriage, about the invocation of some external authority with (even notional) powers of enforcement, that permitted polygamy “take” a spread. . . . Who knows, if polyamory really does take off, and if it caused the same problems as polygamy, perhaps the law would have to be changed to accommodate that new reality. But line drawing, as we would urge the Court, is Parliament’s business, and when dealing with a spectrum of risks and harms the line has to be drawn somewhere.

Jones puts forward evidence that polygamy leads to societal harms that justify infringement upon some individual rights. But we have to be careful about where that line of thinking can lead us (would an abortion ban be justifiable if social science research showed harm arising from a declining birth rate?).

There’s also the fact Canada has tolerated the practice of polygamy in Bountiful for decades. There might be a Criminal Code section that makes polygamy a criminal offence, but it hasn’t stopped a polygamous community of 1,000 people from developing in the B.C. interior. We’ve known what’s been going on there for years, but nothing was done about it. And the longer it takes, the harder it becomes to suddenly start prosecuting it.

Moreover, Canadians know the anti-polygamy law is almost never enforced, but that certainly hasn’t led to many more “plural marriages.” If anything, the existence of Bountiful — a closed, cultish community that feels like a throwback to the 19th century — has probably made polygamy less attractive to mainstream Canadians. Who wants to live like those guys?

The case against officially recognizing polygamous unions, however, is much more strong (if anything, A Cruel Arithmetic is useful for rebutting the argument made by anti-gay-marriage activists, that recognizing same-sex marriage will lead to a slippery slope toward officially sanctioning polygamy). We can respectfully disagree as to whether it should be a crime, but we can agree that polygamy is a very troubling practice.

More importantly, A Cruel Arithmetic describes this major Canadian constitutional argument in more detail than I’ve seen in any other book. The duelling lawyers and their personalities, the clashes within the civil service, the preparation and cross-examination of witnesses — it’s all here. And it is absolutely riveting, especially when Jones describes the dismantling of dubious “expert” witnesses trying to make the case that polygamy is not so harmful. I’d go so far as to say every law student should read it, and many practising lawyers could learn a lot from it, too. I certainly did.

I went into the Iranian film A Separation expecting a film about, well, a separation. And on its surface, the movie is about the breakdown of a marriage between two upper-middle-class professionals in Tehran, and the effect upon their preteen daughter.

The very first scene gives us a glimpse of proceedings in the Iranian equivalent of family court, where Simin (Leila Hatami) argues for the dissolution of her marriage. She wants to leave Iran and take their daughter.

Nader (Peyman Moaadi) is willing to divorce his wife and allow her to move, but he will not accompany her when he has an aged, Alzheimer’s-afflicted father to care for. And he will not consent to his child leaving the country, either. The unseen judge, determining that grounds for a divorce have not been made out despite both parties’ wishes, orders them to resolve their differences on their own.

From this moment on, the divorce proceedings fade to the background, and A Separationbecomes a complex, engrossing tale about the class, religious, and political divisions of the Islamic Republic of Iran. Simin moves in with her parents, and Nader hires a deeply religious, lower-class woman, Razieh (Sareh Bayat) to take care of his father.

But the caregiver — her adorable kindergarten-aged daughter in tow — doesn’t want her unemployed, depressed husband to know she has taken the job, and she is unsure what to do when her employment duties conflict with her Islamic values. At one point, she even calls a cleric to ask whether it is okay for her to undress and wash Nader’s elderly father. (It is.)

Things take an even darker turn when Nader arrives home early to find his father alone and tied to the bed, from which he has fallen. A confrontation with Razieh results, and it ends with Nader shoving her out of the apartment. Shortly thereafter, she miscarries — and, because she was more than 4 1/2 months pregnant, Nader is accused of murder.

A Separation actually gives the viewer more of a look into Iran’s criminal-justice system than its family courts. Nader and Razieh are hauled into the office of a judge — really, a harried bureaucrat — to argue about what really happened. Investigators accompany the complainant and accused to the apartment, and each party tries to physically demonstrate what happened. For people familiar with the Canadian justice system, the way the Iranians handle such a case is quite startling.

Each party, it turns out, is keeping potentially game-changing secrets from the court and from their respective families. Simin and Nader’s daughter, meanwhile, believes that none of this ever would have happened had her parents not separated.

A Separation was made around the same time that Iran was convulsed with clashes between pro-democracy demonstrators and the Islamist government, and the viewer can’t help thinking that Samin and Nader would be among the reformists while Razieh and her husband are part of Mahmoud Ahmadinejad’s political base.

Unsurprisingly, this subject matter proved extremely controversial, and writer-director Asghar Farhadi was forced to leave much of the story untold. It is never fully explained why Samin wants to leave the country, and the viewer is free to speculate about whether family divisions or the likes of Ahmadinejad, or some combination of both, have something to do with it.

Perhaps unintentionally, this actually works in the film’s favour. A Separation turns out to be a film about Iranian people, not the Iranian system of government, and we see just how much the characters have in common with us, despite the less-fortunate conditions under which they live.

In the very last scene, which once again takes place in a family courtroom, the young daughter is asked to choose the parent with whom she wishes to live. In our country, a young girl would not be hauled before a judge and asked to make this decision. But many, many Canadian children would identify with the feeling of being torn between their parents.

If a married couple separates and still wants to have break-up sex, is that anyone’s business but theirs?

Well, according to some judges, it might be if they are trying to get a divorce.

Take the recent case of K.L.S. and D.R.S, a New Brunswick couple who married in 2004 and separated in 2010. Their case went all the way to the provincial appeal court, which rendered its verdict last month.

In this case, the husband moved out of the home and set up a place for himself across town. But at some point after their separation, the wife engaged him in sexual relations.

They agreed to new rules and boundaries about how it would all work and the new arrangement lasted for several months.

However, when it came time to formalize their divorce, which they both wanted to happen, the judge refused the application.

The New Brunswick Court of Appeal, in a 2-1 decision, ultimately granted the divorce. Associate Justice Bradley Green examined the factors to be considered in determining whether a couple is truly living “separate and apart,” and determined that the trial judge placed too much emphasis on the fact that the parties were still having sex:

[23] The courts long ago accepted the possibility that an estranged couple may at law be living separate and apart, even though they continue to reside under the same roof. That said, surely we must also be open to the possibility that an estranged couple who no longer share a residence may at law be living separate and apart even though, for whatever reason, they continue to engage in consensual sexual activity with one another.

[24] Had the inquiry at trial looked at all or most of the factors set out above, the following picture would have emerged:

• The respondent maintains a separate residence, which he has arranged in such a way that the parties’ child has a second home there.

• The parties do not communicate well, argue frequently, and what communication does take place is sometimes hostile. There are allegations of abuse between the parties, and both testified their relationship included name-calling.

• As discussed, the parties did engage in sexual relations with one another.

• The only meal shared together was on the child’s birthday.

• The parties do not attend or engage in social or recreational activities together. In fact, on those occasions when the parties would both be in attendance at their child’s activities, or happen to see one another in the community, the encounters could be problematic.

• The parties do not travel or vacation together, and with the exception of a two-hour period at Easter, do not spend holiday time together as a family.

• The parties present themselves to others as being separated and not on good terms.

[25] Only one of these factors suggests that perhaps the parties were not living separate and apart, that being an ongoing sexual relationship. Although the case law from trial courts across the country is not uniform, this fact alone should not, and in my opinion does not in this case, constitute an interruption of separation.

[…]

[29] With respect, when the trial judge chose to focus on a single issue in determining whether the parties were living separate and apart for the requisite period, and did not address any factors other than sexual activity in her decision, she fell into error and opened the door for appellate intervention. In my opinion, it was an error of law to give undue weight to one factor, and no weight whatsoever to the various other factors.

[30] On the issue of reconciliation, I will comment briefly. Both parties testified that reconciliation was not their intention when they met to engage in intimate contact. It is ironic that had they characterized these sexual encounters as attempts to reconcile (and on the assumption that the 90-day time limitation set out in s. 8(3)(b)(ii) of the Divorce Act was respected), apparently the question of whether they were living separate and apart would have been answered much more simply.

V. Conclusion

[31] On balance, the evidence in this case is strongly weighted in favour of a finding that in fact, and at law, the parties have been living separate and apart since February 10, 2010. For that reason, the majority of the Court determined that the appeal should be allowed, the Petition for Divorce granted, and the matter remitted to the trial judge, who has already heard a considerable volume of evidence, to deal with the remaining issues between the parties.

Calgary radio host Rob Breakenridge and family lawyer Lonny Balbi discussed the case on Breakenridge’s show last night. The resulting podcast is well worth a listen.

Mexico City lawmakers are proposing legislation that would allow newlyweds to apply for temporary marriage licenses, instead of making the plunge into wedded life a lifetime commitment.

The change to civil code was proposed this week and would allow couples to decide the length of the commitment, with two years as the minimum. If couples are still enjoying wedded bliss when the contract ends, then they would be able to renew the license. And if they’re unhappy, the contract expires and they are both free without going through a divorce.

This has been proposed by politicians and writers in The Philippines and Australia, too, so don’t be surprised if someone raises the issue here in Canada. Leaving aside the moral question, I’m curious to know how property division and other corollary relief issues would be handled.

About Me

Damian J. Penny is a lawyer in Dartmouth, Nova Scotia, practicing family and criminal law.

Penny is a native of Mt. Pearl, Newfoundland. After earning a Bachelor of Arts (major: Political Science) from Memorial University of Newfoundland in 1995, Penny studied law at the University of New Brunswick, graduating in 1998.

He was called to the Bar of Newfoundland and Labrador in 1999, and practiced in St. John’s and Corner Brook until 2007, when he became a member of the Nova Scotia Barristers’ Society. Mr. Penny remains a non-practising member of the Law Society of Newfoundland and Labrador.